The Utah Gay Marriage Decision Used Justice Scalia's Own Language Against Him

As we're still reveling in the Utah gay marriage decision, Slog tipper Bill points out this post on Box Turtle Bulletin, which suggests that Judge Shelby may have tossed a middle finger at raging homophobic Supreme Court Justice Antonin Scalia in his decision.

On three separate occasions, Shelby quotes Scalia's dissents to gay-themed cases as examples of why gay marriage should be legal in Utah. Two of those examples are from Scalia's recent dissenting opinion on U.S. v. Windsor, in which he argued that the decision would make it impossible for states to argue against gay marriage. Shelby is, in effect, using Scalia's dissent as an illustration of why same-sex marriage in Utah should be legalized. That's some fine legal judo. Even better was this example, which uses Scalia's 2003 dissenting opinon on Lawrence v. Texas:

The court therefore agrees with the portion of Justice Scalia’s dissenting opinion in Lawrence in which Justice Scalia stated that the Court’s reasoning logically extends to protect an individual’s right to marry a person of the same sex:

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribingthat conduct, . . . what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”?

Id. at 604-05 (Scalia, J., dissenting) (citations omitted).The Supreme Court’s decision in Lawrence removed the only ground—moral disapproval—on which the State could have at one time relied to distinguish the rights of gay and lesbian individuals from the rights of heterosexual individuals.